Evans v Knight
[1991] TASSC 96
•23 October 1991
89/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Evans v Knight [1991] TASSC 96; A89/1991
PARTIES: EVANS, Simon Trading As PICASSO'S CAFE
GRE INSURANCE LTD
v
KNIGHT, Sally Ann
FILE NO/S: LCA 95/1991
DELIVERED ON: 23 October 1991
JUDGMENT OF: Wright J
Judgment Number: A89/1991
Number of paragraphs: 16
Serial No 89/1991
List "A"
File No LCA 95/1991
SIMON EVANS Trading as PICASSO'S CAFÉ
and GRE INSURANCE LTD v SALLY ANN KNIGHT
REASONS FOR JUDGMENT WRIGHT J
23 October 1991
This is an appeal against the decision of a Workers' Compensation Commissioner dated 30 July 1991 wherein it was ordered that the respondent worker recover her costs of a claim determined in her favour against her employer.
The grounds of the appeal are that the learned Commissioner erred in law in that:
"1He acted contrary to section 59(1) of the Workers Compensation Act 1988 in awarding costs to the respondent.
2That the special circumstances found by him to justify an award of costs to the respondent did not amount to circumstances within the meaning of s59(1) of the Act.
3That he failed to apply appropriate legal principles in determining whether circumstances within the meaning of section 59(1) existed."
Section 59(1) of the Workers Compensation Act 1988, provides as follows:
"Except as provided in an order under s57(2), or where the Commissioner, in the circumstances of the case, otherwise determines, costs shall not be awarded to or against a party to a proceeding before the Commissioner."
On 15 October 1990 the respondent worker made a claim for compensation in respect of De Quervain's disease (or stenosing synovitis) alleged to have arisen in her right wrist as a result of the performance of her duties as a waitress at Picasso's Cafe. The appellant employer subsequently made an application to the Commissioner under the provisions of s81 of the Act and the learned Commissioner, having heard both parties, determined that a genuine dispute existed and suspended liability to pay compensation. The dispute was not settled and the case was set down for hearing.
On 22 March 1991 the learned Commissioner heard evidence from the respondent and two medical practitioners called to give evidence on her behalf. As the learned Commissioner acknowledged in his reasons for decision, the difficulty in the case before him was in his deciding whether or not the respondent had proved that the disease in her right wrist arose out of and in the course of her employment at Picasso's Cafe and whether or not her employment had contributed to the causation of that disease to a substantial degree.
After reviewing the evidence adduced and the arguments addressed to him, the learned Commissioner upheld the claim for compensation and adjourned further hearing of the matter until 22 July 1991 to enable the parties to address him on the question of costs and other incidental matters. In making an order for costs in favour of the worker on that day the learned Commissioner made the following comments:
"I have recently delivered a decision with regard to costs. In my opinion an order for costs should not be made unless special circumstances are shown (No. 381991, 20th June, 1991). I find it unnecessary to repeat my reasons for decision in that case. I apply the same reasoning and approach in this case.
In my opinion I should award costs in this case. The circumstantial evidence in favour of the claim was very strong. Both doctors called were clearly in her favour. The consulting specialist in fact prompted the making of the claim. There was no contradictory medical opinion or evidence. The worker's credibility was not shaken in any respect. No evidence was called to contradict her.
I propose to order that the worker have her costs of and incidental to her claim."
Counsel for the appellant submits that the effect of s59(1) is to remove the normal discretion which exists to award costs in civil proceedings in a court. Counsel for the respondent submits that s59 does nothing more than neutralise the prima facie rule that a successful party is normally entitled to his or her costs in a civil action. Neither counsel was able to direct me to any previous decision in which an interpretation of s59(1) has been undertaken. Reference was made to The Queen v Freshney [1977] Tas SR 126. In that case, Cosgrove J had to consider the meaning of s4 of the Costs in Criminal Cases Act 1976. That section empowers a court, upon the application of a successful defendant, to make an order that he be paid in respect of his defence "such costs as it thinks just and reasonable". Section 4(2) requires the court to "have regard to all relevant circumstances". A number of relevant matters are thereafter listed for the court's particular attention in reaching a decision.
Cosgrove J took the view that the Act conferred an unfettered discretion upon the trial judge. But I think the content and structure of the provisions of the Costs in Criminal Cases Act are so different from the provision now under consideration that the matters discussed by Cosgrove J in that case provide little guidance for me on the present problem. It is of course a cardinal rule of statutory construction that the court should not gratuitously imply words in a statutory provision if that provision can be given a sensible meaning in its literal form.
It seems to me that the principal thrust of s59(1) is to prohibit the granting of costs to or against any party to a proceeding before the Commissioner. The exception to this rule is to be found in instances where the Commissioner so determines on the basis of "the circumstances of the case". If this provision were to be interpreted so as to vest in the Commissioner an unfettered discretion to award costs in any case whatsoever, the statutory prohibition would be rendered otiose. This consideration suggests to me that s59 was not intended to confer on the Commissioner a totally unfettered discretion which he is entitled to apply in any way that he sees fit. To so construe the provision would render the Commissioner's order as to costs in any case completely unreviewable. I should need very strong persuasion to come to such a conclusion. In my opinion, there must at least be some special features arising from the circumstances of the matter before him, before the Commissioner acquires jurisdiction to make an order for costs under s59(1). If and when such special features can be demonstrated, he acquires a broad discretionary power to make such order as he sees fit. It is not surprising to me that this is the very conclusion that the learned Commissioner himself appears to have come to.
The appellant submits that in the present case, although the learned Commissioner has adverted to certain features of the trial before him, there is nothing in those features which could lead to a rational conclusion that there was anything out of the ordinary in the respondent's case such as to justify an order for costs in her favour. Counsel for the appellant pointed out that the learned Commissioner, on dealing with the s81 application, had found that a genuine dispute existed between the parties and, at the trial, after having initially questioned the appellant's decision to test the medical evidence, he had acknowledged, at p39 of the transcript, that the appellant's counsel had good reason to require the doctors for oral examination. The relevant passage is as follows:
"COMMISSIONER: ... I think I owe you an apology, Mr Mackay. I can see now from your instructions why you wanted the doctors to come. I think there is a point in having the doctors here. I didn't understand that there was such an extensive range of work involved in her bar duties. Obviously she worked extensively as a barmaid before she worked in this occupation.
MR MACKAY: It raises a number of issues. It's clear, on the medical evidence, that Mrs Knight has an injury which appears to be work related but it's in issue as to which work caused it.
COMMISSIONER: Yes. As to which work caused it, yes, quite so. That's a very valid issue and it may well be that the doctors can throw some light on it."
Counsel for the appellant also pointed out that according to his instructions the respondent had made a statement in the presence of a witness that symptoms of her De Quervain's disease had been manifest before she took on employment with Picasso's Cafe. It was submitted therefore that it was appropriate to test the respondent as to this material as in fact he did, even though after the conclusion of the respondent's case, it was found that the witness who claimed to have heard the admission was unobtainable at that time and so could not give evidence. These factors were mentioned for the purpose of demonstrating that there were good and bona fide reasons for the appellant contesting the respondent's claim and indeed it is noteworthy that the learned Commissioner in enumerating the circumstances which he considered justified an award of costs, made no suggestion that the proceedings were contested for any improper, irrelevant or malicious motives. Nor did he suggest that time was wasted disputing irrelevant material or that there were special circumstances, such as disproportion between the quantum of the claim and the costs involved, or that the conduct of the losing party was such as to justify a departure from the normal rule. In short, it was submitted that the features mentioned by the learned Commissioner could not, and did not, amount to special circumstances.
Accepting as I do, that something in the nature of special circumstances must be demonstrated, it is worth mentioning that in Manos v Fullwood [1949] 1 All ER 205 at p207, Evershed MR suggested that "special circumstances" could be regarded as being synonymous with "peculiar or abnormal circumstances". Whatever adjective one chooses to employ, it seems to me that something out of the ordinary must be found in the circumstances of the case before the learned Commissioner is entitled to make an order. None of the features which he mentioned, in my opinion, place the present case in such a category. I agree with the submission of counsel for the appellant that the learned Commissioner in effect ordered costs to follow the event on the basis that the respondent worker had easily won her case.
It was submitted by counsel for the appellant that in the absence of discovery and pre–trial procedures in actions for workers' compensation under the 1988 Act, the only way in which a respondent can test a worker's claim is by cross–examination of the worker and his or her witnesses during the trial process. I think that if an employer is able to satisfy the learned Commissioner that there is a genuine dispute as to the liability alleged by the worker, he must be entitled to test that liability in the time honoured way of examining and cross–examining witnesses. At least, in my opinion, the employer must be entitled to do this in a case where the worker's injury consists of a disability of gradual onset and uncertain origin. A different view might well be taken if there was a catastrophic accident on the factory floor, or for some other reason the employer's liability to pay was obvious or indisputable. Counsel for the respondent submitted that it was appropriate that I should bear in mind the well known principles formulated in House v The King (1950) 81 CLR 531 as restated by Kitto J in Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at p627:
"... cases of the highest authority which appear to me to establish that the true principle limiting the manner in ... appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499, at pp504, 05."
It seems to me to be immaterial for present purposes whether one characterises the error in this case as a failure to find sufficiently cogent circumstances to justify the learned Commissioner in exercising his discretion or, upon his exercising that discretion, a failure on his part to identify sufficiently relevant features to justify his departure from the primary rule of prohibition contained in s59(1). In either case it appears to me that the aggrieved party may successfully challenge the learned Commissioner's order by exercising the right of appeal conferred by s63(1).
The point involved in the present appeal has been a simple one but it has caused extra cost to both parties. As I have had occasion to observe before, part of the social philosophy to be observed in the Workers Compensation Act 1988, is to avoid unnecessary cost to litigants. Unfortunately, the way in which some parts of the Act have been drafted tends to bring about a contrary result. It would have been a simple matter for those framing s59 to insert the adjective "special" before the word "circumstances", rather than leaving the matter open to conjecture. In my opinion, the true meaning and purpose of s59 may be simply stated and is sufficiently unremarkable to be expressed in clear and unambiguous language.
In my opinion, the appeal must succeed. The order made by the learned Commissioner on 22 July 1991 is set aside. The respondent is ordered to pay the appellant's costs of this appeal. I certify for counsel. If, as I anticipate, the respondent applies for a certificate of indemnity under the provision of s8 of the Appeal Costs Fund Act 1968, she is plainly entitled to have one.
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